Gm=Sa also known as Dg, M-s v. Dmp-j

HCMP 1052/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1052 OF 2017

(ON AN INTENDED APPEAL FROM FCMC NO. 9657 OF 2016)

________________________

BETWEEN

________________________

________________________

REASONS FOR DECISION

________________________

Hon Cheung JA (giving Reasons for Decision and Decision on Costs of the Court) :

1.On 18 August 2017, we refused the respondent husband’s renewed application for leave to appeal against a decree nisi and two consent orders and reserved our decision on costs. H H Judge Melloy had already refused to grant leave. We now give our reasons.

2.The petitioner wife (‘wife’) petitioned for divorce on 29 July 2016 based on the husband’s conduct. The parties have two children aged 11 and 9.  The facts revealed that the marriage was in difficulties in 2011.  In January 2016 the wife sought advice on divorce.  In April 2016 the husband moved out from the matrimonial home.  The parties then negotiated and settlement was eventually reached.  On the same day when the wife petitioned for divorce, the parties signed two consent summonses, one dealing with their children and the other dealing with finance.  On the basis of these two summonses, consent orders were made by the Judge on 20 September 2016. 

3.By the consent order relating to the children, the parties agreed that they would have joint custody of the two children, with care and control to the wife and reasonable access to the husband including staying access on two out of every three weekends.

4.The consent order relating to finance contains detailed provisions.  Briefly, the wife will receive slightly less than 50% of the joint assets which included the matrimonial home.

5.On 14 October 2016 the husband filed the application for leave to appeal against the decree nisi and consent orders on the ground that the wife had not disclosed in her negotiation that she has a new boyfriend.  It transpired that the wife went with the new boyfriend and his children on a holiday in August 2016.  On 25 September 2016 the wife informed the husband that she would soon be leaving Hong Kong with the children to live in Europe.  On 30 September 2016 the wife refused to amend the children’s consent order to state she had no current intention to leave Hong Kong.  On 15 October 2016, the wife introduced the children to her boyfriend in the former matrimonial home as ‘her new special friend’.  On 23 February 2017 the wife went to holiday with the children.  On 7 March 2017, the wife filed her relocation application to Zurich which stated that ‘[The boyfriend], the man I want to share the rest of my life with, is based in Zurich’.

6.The husband’s case is that if he had known the wife’s true circumstances, he would not have agreed to either the consent orders or the divorce.

7.Upon hearing the parties, we refused leave to appeal for the following reasons ：

1) Assuming that there is indeed a requirement for the wife to make disclosure and failure to do so will entitle the husband to set aside the consent orders and the decree nisi, in the context of this case, the proper procedure is to bring a fresh action to set them aside.  While the Court of Appeal has jurisdiction to hear the matter on appeal (WTOL v WYPP, CACV 241/2011), factual dispute relating to, for example, when the wife formed the new relationship and her state of mind on disclosure render the matter not suitable to be addressed in this Court.  As the law now stands, there is no jurisdiction to apply to set aside the consent orders before the Judge who made them.  Whilst this course was discussed at the hearing, we prefer not to express any view on it.

2) Further in respect of the decree nisi, there is no reasonable prospect of success on appeal, bearing in mind the husband’s position that he intends after the decree is rescinded, to file an answer to the wife’s petition and to present a cross petition himself.  The marriage is plainly at an end, to allow the decree nisi to be set aside will only delay the inevitable.

3) Mr Todd QC (together with Mr Jeremy Chan) for the wife had also argued on the merits of the appeal relating to the consent orders on the children and finance.  Having declined the application on the basis of the appropriate procedure, we prefer not to express any views on the merits.

8.The parties had been able to reach a settlement before the present dispute occurred.  We would urge them to endeavour to resolve the outstanding differences between them through negotiation.

Decision on Costs

9.We will make no order as to costs of this application.

Mr Richard Todd QC and Mr Jeremy Chan, instructed by Withers, for the petitioner

Mr Russell Coleman SC and Mr Robin Egerton, instructed by Oldham, Li & Nie, for the respondent